ALJDEC decisions subject to certification as final

21A-068-POST · Peace Officers Standards and Training · 2022-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the Peace Officer Certification of:

Christopher S. Haynes,

Respondent.

No. 21A-068-POST

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 15, 2022

APPEARANCES: Assistant Attorney General Gino Duran represented the Arizona Peace Officer Standards and Training Board. Thomas Griffin, Esq. represented Respondent Christopher S. Haynes.

The witnesses were: Dave Toporek, Sergeant Lindsey Smith, Detective Shonci Hawkins, James Sparman, Deputy Robert Normile, Deputy Manuel Madrigal, Paul Compton, and Lieutenant Ross Teeple.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

The Arizona Peace Officer Standards and Training (“POST”) Board has alleged that Respondent Christopher S. Haynes (“Respondent”) has committed the following acts in violation of Board Rules as follows:

Respondent was insubordinate by disobeying an order not to communicate about an internal investigation after receipt of the Notice of Investigation and verbal notification by the investigating Professionals Standards Bureau Sergeant.

On or about July 18, 2019, Respondent was untruthful with investigators during a pre-polygraph examination interview, when asked if he violated his Notice of Investigation and had ongoing communication via text message with another Deputy involved in the investigation.

On or about July 18, 2019, Christopher Haynes was untruthful with investigators during a pre-polygraph examination interview, concerning his discussing aspects of the polygraph with another Deputy involved in the investigation.

Respondent completed peace officer training and received certification from POST. At the time of the events alleged herein, Respondent was employed as a Deputy with the Maricopa County Sheriff’s Office (“MCSO”).

On February 1, 2021, Respondent was terminated from his employment with MCSO for misconduct. A Termination Report was generated which notified POST that Respondent may have violated POST rules.

POST assigned Compliance Specialist Dave Toporek to investigate whether the circumstances of Respondent’s termination from MCSO provided cause to discipline his peace officer certification under POST’s administrative regulations. After review, POST determined that cause existed to discipline Respondent’s certification.

Mr. Toporek drafted a Case Overview for POST. On December 10, 2018, Respondent and another MCSO Deputy responded to a domestic violence call in Guadalupe, Arizona. One of the individuals involved in the incident was arrested and thereafter that individual complained that Respondent had used excessive force during her arrest.

After investigation, MCSO determined that the allegations made against Respondent were not sustained.

During MCSO’s investigation, specifically on May 23, 2019, Respondent was provided with a Notice of Investigation (“NOI”) which delineated with whom Respondent could discuss the investigation.

On May 31, 2019, Respondent was provided with a second NOI.

On July 15, 2019, Respondent was ordered to undergo a polygraph examination and to not discuss the matter.

On July 18, 2019, Respondent was scheduled for a polygraph examination regarding MCSO’s investigation. Prior to the actual examination, Respondent and the polygraph examiner discussed aspects of the investigation during a pre-polygraph interview. During the discussion, the polygraph examiner asked Respondent what communication he had with Deputy Nick Peterson, another deputy involved in the investigation, regarding the polygraph/investigations. Respondent answered by stating, “None.”

On July 26, 2019, Deputy Peterson was interviewed and it was discovered that Respondent and Deputy Peterson had post-NOI communication via text message regarding aspects of the investigation.

Dave Toporek’s Testimony

Mr. Toporek testified that Respondent’s failure to follow the orders contained within the NOI by communicating with Deputy Peterson, another principal in the investigation, was insubordination. Mr. Toporek further testified that Respondent lied to the polygraph examiner prior to the polygraph examination regarding whether he had communicated with Deputy Peterson about any aspects of the investigation, and that Respondent lied to investigators regarding his communications regarding the polygraph examination. Mr. Toporek testified that Respondent denied discussing the polygraph examination with Deputy Peterson, however, the text messages contradicted Respondent’s statements.

Mr. Toporek explained that lying during an internal investigation is considered malfeasance and that insubordination can be considered malfeasance, as well. Mr. Toporek further explained that if an officer lies, such action jeopardizes the public trust.

Mr. Toporek testified that Respondent is currently employed by the Pinal County Sheriff’s Office (“PCSO”), and that POST did not prevent Respondent from being hired, as this matter had not yet been adjudicated. However, POST’s Executive Director expressed concerns to the Chief Deputy for PCSO and the potential ramifications due to the instant proceedings.

Sergeant Lindsey Smith’s Testimony

Sergeant Lindsey Smith conducted the administrative investigation for MCSO of the allegations of misconduct against Respondent arising from the December 10, 2018 domestic violence call.

Sergeant Smith testified at hearing that Respondent, Deputy Peterson, and Sergeant Eric Lamb were the principals in the investigation and that Detective Shonci Hawkins and Detective Gary Kaplan were investigative leads in the investigation. Sergeant Smith briefly testified regarding the allegations that gave rise to the investigation.

Sergeant Smith testified that on May 23, 2019, Respondent was issued a NOI that informed him that “an official Administrative Investigation has been initiated in which you have been named as a Principal.” The NOI set forth the following advisement:

This investigation is not to be discussed by you with any person other than the assigned investigator(s), your attorney, your clergy, your spouse, or domestic partner, (so long as he or she is not a witness, investigative lead, or principal in this investigation) (a domestic partner is defined as an interpersonal relationship between two individuals who live together and share a common domestic life but are not married to each other or anyone else), or a licensed mental health professional or physician during professional consultation, treatment or evaluation.

Failure to comply with this order will result in disciplinary action.

Sergeant Smith testified that on May 31, 2019, Respondent was issued another NOI that informed him that “an official Administrative Investigation has been initiated in which you have been named as a Principal.” The NOI set forth the following advisement:

Failure to comply with this order will result in disciplinary action.

Sergeant Smith also instructed Respondent not to talk about the polygraph examination.

On August 6, 2019, a third NOI was issued to Respondent which contained different allegations, including: “It is also alleged [Respondent] was untruthful during his polygraph examination on July 18, 2019. Additionally, it is alleged [Respondent] disobeyed a direct order by discussing this investigation.”

The August 6, 2019 NOI set forth the following advisement:

Failure to comply with this order will result in disciplinary action.

Respondent signed and dated all three NOIs under a statement that reads: “I acknowledge that I have read and understand this memorandum.”

Sergeant Smith testified that Respondent was also issued a Garrity Warning on May 31, 2019. The Garrity Warning specifically advised Respondent:

By Office Policy you are to make full, complete and truthful statements during this interview. The Sheriff’s Office is committed to a strict standard of truthfulness as established in Office Policy.

Failure to be absolutely truthful during this investigation will result in your termination.

Compelled statements cannot be used to incriminate you in any criminal proceedings regarding this subject matter.

Respondent signed the Garrity Warning, indicating that he understood the content of the Garrity Warning and that he did not have any questions regarding the Garrity Warning.

A second Garrity Warning was issued to Respondent on August 6, 2019. The Garrity Warning specifically advised Respondent:

Failure to be absolutely truthful during this investigation will result in your termination.

Compelled statements cannot be used to incriminate you in any criminal proceedings regarding this subject matter.

Respondent signed the Garrity Warning, indicating that he understood the content of the Garrity Warning and that he did not have any questions regarding the Garrity Warning.

Sergeant Smith testified that she conducted interviews with witnesses and the answers to her questions were inconsistent. As a result, she conducted second interviews and still, there were inconsistencies.

Sergeant Smith testified that a separate concern arose regarding Respondent’s truthfulness. Consequently, the investigation began to focus on Respondent’s untruthfulness and Sergeant Smith obtained permission from the Commander for polygraph testing.

Sergeant Smith testified that a polygraph examination was first conducted with Deputy Peterson. After Deputy Peterson’s polygraph examination, Sergeant Smith suspected communication between Deputy Peterson and Respondent. Sergeant Smith conducted a second interview with Deputy Peterson wherein Deputy Peterson admitted to communications with Respondent. Deputy Peterson provided information regarding an exchange of test messages between himself and Respondent.

The text message exchange began on July 10, 2019, after Respondent received and acknowledged the contents of two NOIs.

The following are excerpts from the text message exchange between Respondent and Deputy Peterson:

On July 10, 2019, Respondent texted Deputy Peterson: “How did the Guad thing tuen [sic] out?,” “Did Lindsey Smith call you?,” “Not asking for details on that.”

On July 13, 2019, Respondent texted Deputy Peterson: “Cope said you took a poly?,” “Bad you think?,” “I’m not asking details”

On July 13, 2019, Respondent texted Deputy Peterson: “How long was poly? Did they schedule it or out of the blue?

On July 14, 2019, Respondent texted Deputy Peterson: “I’m curious if I have to do a poly tomorrow. She text me to call her before I’m off shift so we can ’get together’.....”

On July 14, 2019, Respondent texted Deputy Peterson: “Its tomorrow morning”

On July 15, 2019, Respondent texted Deputy Peterson: “I think certain tests are just designed to fail. No matter what you say.”

On July 16, 2019, Respondent texted Deputy Peterson: “Lamb went at 2pm.”

On July 16, 2019, Respondent texted Deputy Peterson: “I don’t [sic] think any of us are going to pass it. Its [sic] designed to fail people. Even when telling the truth.”

On July 16, 2019, Respondent texted Deputy Peterson: “I’m already so nervous and theres [sic] nothing to lie about or hide.”

On July 16, 2019, Respondent texted Deputy Peterson: “I wonder how Lambs [sic] poly went.”

Sergeant Smith testified that Respondent’s polygraph examination was on July 18, 2019. Sergeant Smith testified regarding specific portions of the transcript of the pre-polygraph interview. Respondent acknowledged during that interview to having received a NOI. Respondent told the polygraph examiner that he had not had any contact with Deputy Peterson or Sergeant Lamb and had not discussed the investigation since the issuance of the NOI. Respondent denied twice that Deputy Peterson and Sergeant Lamb knew that he was taking the polygraph examination. Respondent denied speaking or texting with Deputy Peterson and Sergeant Lamb since the issuance of the NOIs. Respondent denied “withholding any information with regard to the transmittal of information of people as it pertains to the polygraph . . . and the investigation.” Respondent denied any text communication with Deputy Peterson other than one text exchange wherein Deputy Peterson stated that he could not work “sand bar” because he was on “admin.”

During the hearing, several video clips of Sergeant’s Smith’s August 6, 2019 interview with Respondent were shown. Respondent was issued a NOI and a Garrity Warning prior to the interview. During the interview, Respondent denied discussing the details of the investigation with Deputy Peterson notwithstanding having been provided the opportunity to review his text exchanges with Deputy Peterson.

Sergeant Smith testified that during her August 6, 2019 interview of Respondent, she confronted Respondent with the text messages and when asked why his answers to interview questions contradicted the text messages, Respondent replied that he “does not keep text messages” and “did not know why his answers were different.” Sergeant Smith testified that thirty (30) text messages were exchanged over a period of eight (8) days prior to Respondent’s polygraph examination, yet Respondent denied having any contact with Deputy Peterson during his pre-polygraph interview.

During the August 6, 2019 interview, Respondent asserted that he “didn’t talk details.” However, Respondent also admitted that he discussed details with his girlfriend at the time, Detective Shonci Hawkins, and his parents. During the interview, Respondent stated that he lived with Detective Hawkins for approximately a month, and that he “thought he could talk to his girlfriend.” Later in the interview, Respondent stated that Detective Hawkins lived with him for longer than a month, and at another time during the interview, Respondent stated that Detective Hawkins “had been living there for a while.”

Sergeant Smith interviewed Detective Hawkins on August 6, 2019, during which Detective Hawkins stated that she discussed the details of the investigation with Respondent who was her boyfriend at the time. Detective Hawkins also stated that she lived with her mother in Gilbert, Arizona. Sergeant Smith read Detective Hawkins the definition of domestic partner per MCSO policy, and following the review of the definition, Detective Hawkins stated, “I would say that we were almost borderline domestic partners, but I’m not there full time.” During the interview, Detective Hawkins was asked “if she would have made the same decision to discuss the investigation or asked [Respondent] about discussing the investigation with the knowledge that she has learned today. Detective Hawkins relayed she would not have discussed the case and would have told him not to talk with her about it.”

Sergeant Smith testified that a Pre-Determination Hearing was conducted and that Respondent submitted a Pre-Determination Hearing Statement dated January 28, 2021, portions of which contradicted Respondent’s statements during the August 6, 2019 interview. In his Pre-Determination Hearing Statement Respondent stated the following regarding his communications with Deputy Peterson which contradict what he told Sergeant Smith during his interview:

. . . When I initially texted him in reference to this matter, I specifically stated a couple of times that he cannot give me any details about the investigation. . . . I did tell him I heard that Sergeant Lamb was given a polygraph test. Deputy Peterson responded by saying that he was given a polygraph test as well. I then asked some questions about how he was scheduled for the polygraph and expressed my concerns with having to take a polygraph test.

Respondent further stated in his Pre-Determination Hearing Statement: “During the polygraph examination, I was asked if I had any communication with Peterson and I replied ‘No.’ I understood this question to be asking if I had communications with Deputy Peterson about the specifics of this case.”

Detective Shonci Hawkins’ Testimony

Detective Hawkins testified that she began to date Respondent in April 2019, and that in August 2019, she maintained a separate residence in Gilbert, Arizona. Detective Hawkins testified that she was on vacation with Respondent in July 2019 when he received a phone call regarding the investigation and that Respondent discussed the details of the investigation with her, including the incident that occurred in Guadalupe giving rise to the investigation. Detective Hawkins was clear in her testimony that she maintained a separate residence at the time and eventually moved in with Respondent in October 2019. Detective Hawkins testified that she stayed at Respondent’s residence “most nights.” The relationship ended in January 2022.

Respondent’s Testimony

Respondent testified that he “does not dispute the text messages,” “does not dispute the accuracy of the polygraph pre-interview,” and “does not dispute the video interview.” However, Respondent testified that he did not disobey an order. Respondent testified that he spoke to his girlfriend, parents, and Nick Peterson because he “thought he could speak to them but not about the details of the case.” Respondent also testified that he was “not untruthful in the polygraph exam” because “no details of the investigation were discussed.”

As to the timeline of the progression of his relationship with Detective Hawkins, Respondent asserted that he cannot be “specific as to dates” but she was “there most nights.”

Respondent testified that he told Detective Peterson the day before the polygraph examination that he was having one, and that he did “not intentionally leave it out,” but that it was “just so stressful” and it is the “worst thing he has ever gone through in his life.” Respondent explained that he “thought his conversations were okay” based upon his interpretation of the NOIs. Respondent further testified that notwithstanding the order not to communicate with Deputy Peterson and the Garrity Warnings, he believed he was being truthful and answered every question truthfully when they were asked. Respondent contended that he “thought ‘communications’ meant details of the case.” Respondent further asserted that discussing the length of the polygraph examination with Deputy Peterson was “not discussing the case.”

Respondent’s assertions at hearing that he believed he was telling the truth and misinterpreted the orders, are found not to be credible.

Respondent testified that he became a sworn deputy in 2014 and that he takes great pride in being an officer. Respondent testified that he applied to PCSO, that a full background check was conducted, and PCSO was aware of MCSO’s investigation and termination, and he was still hired as a full-time sworn deputy.

James Sparman’s Testimony

Mr. Sparman is a retired law enforcement officer, having been employed with MCSO for 16 years, and prior to that having been in the military. In 2016, Mr. Sparman was Respondent’s direct supervisor. Mr. Sparman opined that Respondent is “dedicated to the brotherhood and mission,” that Respondent is a passionate person, and he believes that Respondent is honest and does not question his character. Mr. Sparman also testified that he has no knowledge of whether Respondent lied during the investigation.

Robert Normile’s Testimony

Deputy Normile is employed with MCSO and has known Respondent since 2013, when they went through the Academy together. Deputy Normile is also a good friend and business partner of Respondent. Deputy Normile testified that Respondent is professional, calm, a hard worker, loyal, and a best friend who has always been there for him. Deputy Normile believes that Respondent is honest and he never questioned Respondent’s character. Deputy Normile acknowledged that he has no personal knowledge of whether Respondent was untruthful during the investigation or disobeyed an order.

Manuel Madrigal’s Testimony

Deputy Madrigal has known Respondent since he began his employment with MCSO approximately eight (8) years ago when they attended the Academy together. Deputy Madrigal and Respondent worked the same district for three (3) or four (4) years and were on the same squad. Deputy Madrigal opined that Respondent is an “outstanding deputy,” is proactive, and “would look up warrants on his own time to look for people to clean up the streets.” Deputy Madrigal testified that Respondent is humble, honest, reliable, and he never questioned Respondent’s character. Deputy Madrigal acknowledged that he has no personal knowledge of whether Respondent was untruthful during the investigation or disobeyed an order.

Paul Compton’s Testimony

Mr. Compton is an investigator for PCSO. Mr. Compton explained his role in the background investigations for new hires with PCSO and the hiring process. Mr. Compton testified that he was aware of the allegations in the instant matter and of Respondent’s termination by MCSO. Mr. Compton testified that if PCSO’s guidelines for hiring are met, an applicant’s application is moved to the next level, and that even if an individual at the next level of review does not approve, the application continues through the process. In Respondent’s case, he met PCSO’s sworn selection guidelines.

Mr. Compton testified that he did not conduct any investigation or speak with anyone involved in the investigation. Mr. Compton “documented what Respondent told him” in the pre-employment background report that he authored. Mr. Compton testified that he was not aware that MCSO sustained a violation by Respondent of the NOIs, was not aware of his interview with Sergeant Smith, and that such is a “significant omission” that he either “missed or it wasn’t in the file.” However, Mr. Compton testified that Respondent told him he was “terminated by MCSO because he lied.”

Ross Teeple’s Testimony

Ross Teeple is a lieutenant with PCSO and was a sergeant at the time of Respondent’s hiring. Lieutenant Teeple was Mr. Compton’s supervisor at the time of Respondent’s background check. When Mr. Compton’s report was completed, it was given to Lieutenant Teeple. During the hearing, Lieutenant Teeple could not recall his recommendation regarding Respondent’s hiring, however, Lieutenant Teeple testified that an individual can still be hired if he does not make such recommendation.

Lieutenant Teeple testified that he had access to Respondent’s file but did not review the entire file because there was “not enough time.” Lieutenant Teeple reviewed Mr. Compton’s report, including the reasons for Respondent’s termination from MCSO. Lieutenant Teeple testified that he relied upon Mr. Compton’s review summary and that in this case, Respondent’s file was 4.6 gigabytes, and that if anything was omitted from the review summary, he would not know about it. Lieutenant Teeple testified that based upon the information provided, he does not believe that Respondent violated Garrity “because Garrity is as to the specifics of a case.”

Lieutenant Teeple acknowledged that Respondent is on the “Brady List” or the “15.1 Disclosure Database” in both Maricopa and Pinal Counties.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction.

POST bears the burden of proof to establish cause to discipline Respondent’s peace officer certification by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Under A.A.C. R13-4-109(A), POST may “[d]eny certified status or suspend or revoke the certified status of a peace officer” who does not comply with duly promulgated rules prescribing reasonable minimum qualifications for officers. POST may discipline an officer’s certification under A.A.C. R13-4-109(A)(8) or (12) if it determines that s/he has committed acts that constitute any of the following:

8. Malfeasance, misfeasance, or nonfeasance in office;

. . . .

12. Engaging in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

Malfeasance is defined as “[a] wrongful or illegal act.” Misfeasance is defined as “[a] lawful act performed in a wrongful manner.” Nonfeasance is defined as “[t]he failure to act when a duty to act existed.”

Respondent received NOIs on May 23, 2019 and May 31, 2019 (as well as on August 6, 2019). Those documents contained unambiguous language ordering Respondent not to discuss the investigation with anyone other than certain permissible individuals and that failure to comply with the orders would result in disciplinary action. The credible, probative, and substantial evidence of record established that after Respondent received the NOIs, Respondent communicated with Deputy Peterson and Detective Hawkins regarding the investigation, and that Deputy Peterson was a Principal in the investigation, and Detective Hawkins was not a domestic partner, as defined by MCSO policy, at the time that Respondent discussed the investigation with her. Respondent signed and dated the NOIs acknowledging that he read and understood them. Further, Sergeant Smith verbally instructed Respondent not to communicate about the investigation. Respondent was insubordinate by disobeying the NOIs’ orders not to communicate about the investigation and Sergeant Smith’s verbal notification not to communicate about the investigation.

The credible, probative, and substantial evidence of record established that Respondent was untruthful with the polygraph examiner during a pre-polygraph examination interview when asked if he violated his NOIs and had ongoing communication via text message with another deputy involved in the investigation. Respondent told the polygraph examiner that: i) he had not had any contact with Deputy Peterson or Sergeant Lamb and had not discussed the investigation since the issuance of the NOIs; ii) Deputy Peterson and Sergeant Lamb did not know that he was taking the polygraph examination; iii) he did not speak or text with Deputy Peterson and Sergeant Lamb since the issuance of the NOIs; and iv) he did not have any text communication with Deputy Peterson other than one text exchange wherein Deputy Peterson stated that he could not work “sand bar” because he was on “admin.” The text message exchange between Respondent and Deputy Peterson establishes that Respondent’s statements were not truthful.

POST established that Respondent disobeyed the orders contained in the NOIs and the verbal order by Sergeant Smith not to communicate about the investigation, and Respondent was untruthful about his communications with Deputy Peterson. Respondent’s conduct in disobeying the repeated orders constituted malfeasance. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8).

The public expects peace officers to be truthful. Respondent’s dishonesty during the pre-polygraph interview constitutes conduct that diminishes or otherwise jeopardizes public trust in the law enforcement profession. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(12).

-54864001

001

-137160-45720000Done this day, November 30, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically or by mail to:

Matt Giordano, Director

Peace Officers Standards and Training

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000